In a major victory for gay rights, the United States Court of Appeal for the First Circuit in Boston has found the Defense of Marriage Act unconstitutional in a unanimous ruling. The court found that the 1996 law discriminates against homosexual couples. The law was supported by Bill Clinton and by the Obama Administration until the latter recently reversed its position in court and withdrew support for the law before the Court. The case is Gill v. Office of Personnel Management.
Notably, the decision did not rule on the key issue of full faith and credit — whether states without same-sex marriage can be forced to recognize gay unions or divorces from states where they are legal. The law was struck down as denying the right of the state to determine how to define marriage and denies gay couples federal benefits given to heterosexual married couples.
The case sets up an extremely likely Supreme Court review on the issue with the same-sex case in the Ninth Circuit moving toward the Court. Ironically, today we will be filing the summary judgment motion in the Sister Wives case involving plural marriage and polygamy.
Judge Michael Boudin, a Republican appointee, wrote the opinion. Another Republican appointee signed on — Judge Juan Torruella. Before going to the Supreme Court, there may be a petition for an en banc review from the entire First Circuit. The decision upholds the ruling of district court Judge Joseph L. Tauro.
The discussion of the relevant standard for equal protection is interesting as is the following statement on the defense of the act as simply supporting traditional marriage:
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
Source: Boston
Tony C.
Since when do I need your trouble? And what makes you think you can arbitrarily put me in jail?
Virginia was apparently the last state in the union to have a law against miscegenation. When they convicted a couple of criminal miscegenation for having married ELSEWHERE but then living in Virginia as a married couple, the thing went up to the US Supreme Court and Virginia got yet another spanking for violating folks’ Constitutional rights (bad habit, hard to break).
But full faith and credit is something that cuts both ways. Each state is required to give full faith and credit to the VALID acts of another state, but the measure of VALIDITY has to take place in the state where you want the execution of the acts (or court orders, or judgments, etc.) to be. So the state where you want enforcement says, “If the other state’s order is unconstitutional we cannot enforce it.” Even more important, if the other state’s order is unconstitutional, you’re not ALLOWED to enforce it.
Look OUT!
(Of course all this can be undone in individual cases by simple agreement on the part of public officials to just ignore the law. So assistant AG in Maryland — let’s just say his name is Mr. Kunz, upon information and belief, pulls a little “adjustment” to a full faith and credit registration to help out assistant AG (let’s call her Ms. Strom) in Virginia because they had a little bitty oops thing with a little bitty order — stuff like that happens. I’m just stating this “upon information and belief” of course. But you see, you could get married in Massachusetts and then have someone in, oh say Utah, kinda unregister you or something and there you would have to go, buying all those flowers all over again and hiring the caterers and the band…
Just imagine!
But maybe there can be other adjustments too.
Full Faith and Credit.
Well when we can give our courts ANY faith and ANY credit, we’ll be in a new ball park indeed.
@Matt: They don’t have to worry about divorce.
And if we all arbitrarily decide to put you in jail, you wouldn’t have to worry about making a living, and from your statement I gather that by your lights us oppressing you like that is justifiable because we are definitely saving you some trouble.
idealist707 1, May 31, 2012 at 1:35 pm
What defines the breadth of the issue and the ruling?
This one could be interpreted as political cherry picking, playing to homosexual couples, while for now not disturbing states rabidly opposed to that other than man/woman. All for support of whom?
And what triggers full credit, etc.? Turley noted that it was not includded. What are th legal forces working?
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Gene H places the text in his comment up-thread.
I read a law journal article some time back, written by a Supreme Court Justice, who focused on the “Full Faith and Credit Clause.”
He said it had been given short shrift historically.
I would call it a cross-roads clause, because a lot of issues converge there, bringing inherently conflicting essences.
It is like a busy highway intersection that needs good and sophisticated traffic lights, sign placement, and a wide angle view for all who go there.
On its face, that clause appears to be in conflict with other clauses of the constitution, simply because it is in conflict, at least at first blush.
For example, is contradictory to say that states can make their own valid laws that are the law of their sovereign realm, but to then turn right around and say but they have to give “full faith and credit” to what other states make into law.
At once one must realize that “full faith” is like “due process”, in the sense one must immediately ask “what process is due” and “how full is full?”
Full faith must mean “as much faith as possible without destroying our own laws in the process”.
That is why this “what is marriage?” thingy is so thorny, some states give no faith and credit to gay marriage. Others give full faith and credit.
Thus the conundrum.
Obviously a no gay marriage state does not give full faith and credit to a sister state who does.
Since states have the right to define, in their state, what marriage is and is not, and the federales do not, Houston we have a potential problem.
DOMA was a violent act of the federales, who took of one side of this equation out of existence. They took out the states’ right to define gay marriage as marriage, in the sense that they impaired the property rights of gays who marry in states where that is legal.
Many cases are going to spring up, even if the Supreme Five do eventually hammer on this nail.
BTW,
Good luck professor on your Summary Judgment motion!
Gene,
I would expect the Supremes to get this case and I am not sure what they will do. But you are right, the corporatists haven’t sent the checks yet.
“Article IV – The States
Section 1 – Each State to Honor all others
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
Although the FF&C Clause has never been used to force a state to hold valid another state’s marriage (Loving v. Virgina was based on the Due Process Clause and the Equal Protection Clause of the 14th Amendment), it very well could be invoked as an alternative rationale. In the case of domestic relationships, disparity in recognition will result in lawsuits against the states at some point. Given the precedent of Loving I fully expect the Due Process Clause and the Equal Protection Clause arguments to be made again, but I also expect that someone will make the FF&C arguments as well. Since the finding of DOMA as unconstitutional relates to an act of Congress as it applies to the Federal government, both lines of argument present a solid case.
What defines the breadth of the issue and the ruling?
This one could be interpreted as political cherry picking, playing to homosexual couples, while for now not disturbing states rabidly opposed to that other than man/woman. All for support of whom?
And what triggers full credit, etc.? Turley noted that it was not includded. What are th legal forces working?
Good news. I don’t see how this can’t rationally trigger the Full Faith and Credit Clause. That being said, it is the Robert’s court and the verdict usually seems to go to the highest bidder.
@ Matt Johnson: Mia and Woody had a helluva fight, not one that any person would want in their lives. Judge Elliott WIlke in NY had a helluva time with that case, too, and he was taken off the matrimonial bench (leaving it with one less reasonable and intelligent jurist, to everyone’s detriment) as a result! Horrible!
I wouldn’t wish it on my worst enemy. (Although, actually, my worst enemy did wish it on me and actually imposed it on me too.)
Tony C. 1, May 31, 2012 at 12:01 pm
@Matt: The question isn’t ABOUT living together or having sex together, the question is about legal protections and privileges afforded legally married people that are not afforded to unmarried people. Such as the right of inheritance, the power of consent and the right to information and visitation in emergency care, visitation rights to children in case of divorce or separation, a right to jointly owned property in such cases, and (literally) more than a hundred other rights; including taxation issues.
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I read the First Circuit opinion earlier.
The First Circuit case does cite to Lawrence v Texas, which JT also cites to in the complaint in the Sister Wives case.
puzzling,
My point entirely.
While a very positive result today, I am not sure the politicization of marriage will end unless government gets out of the business of defining and licensing it entirely.
Tony C.
The other side of that coin. They don’t have to worry about divorce. It results in less complication.
Ask Woody Allen and Mia Farrow.
A few days ago, I read somewhere that the Alabama legislature has passed a bill that strips same gender couples of all marital rights and even went so far as to void such things as wills and durable powers of attorney for health care. I am too busy this morning to try and find it, so someone who has spare time might want to do some fact checking on this story.
@Matt: The question isn’t ABOUT living together or having sex together, the question is about legal protections and privileges afforded legally married people that are not afforded to unmarried people. Such as the right of inheritance, the power of consent and the right to information and visitation in emergency care, visitation rights to children in case of divorce or separation, a right to jointly owned property in such cases, and (literally) more than a hundred other rights; including taxation issues.
Great. I hope it stands up all the way.
What a wonderful day.
Can’t get on “the Sister Wives case” because don’t have a password. Why don’t they just go with common law marriage? If you want to live together, go ahead. This is boring. Do you want some lemonade?